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Saturday, September 14, 2019


I have written about Abraham Lincoln’s career as a criminal defense lawyer. When he became president there were many occasions when he had to exercise his skills and training for that profession. His approach to problems as reflected in his speeches and writings was “lawyerly.” First, he articulated the issues, and then he fairly stated the evidence and arguments from each side of the case. Finally he would eloquently give his point of view, and support his decision, often citing precedent, but always relying on the force of the evidence that persuaded him.

            As president, he had to decide whether to pardon individuals who were condemned to death. The Constitution (Art. II, Sec. 2) gives the President plenary power to grant a pardon for federal offenses. There is no appeal from his final decision. He is the court of last resort. This power was granted to the executive by the Founding Fathers despite its historical association with monarchs, and its obvious anti-democratic implication. (Hamilton, in Federalist Papers, No. 74, explains that the severity of the criminal law (which at the time provided for death for many offenses) needed to be mitigated. The “Chief Magistrate” as a “man of prudence and good sense” is in the best position to determine whether mitigation exists; his judgment should not be fettered by fears of being overturned.

            During the Civil War, Lincoln almost invariably pardoned soldiers who were condemned to death by military courts martial. He was susceptible to appeals from family members, especially women pleading for their sons, husbands, or brothers, and even for friends and acquaintances.  Most generals opposed as harmful to military discipline his grants of mercy to soldiers condemned to death for violations of military rules. Desertion was the most egregious offense to the militarists, but Lincoln found mitigation in most cases. He cited the “soldier boy’s” youth, inexperience or some other human defect to justify his order to reduce a sentence.
            In the first year of the war, a soldier who slept while on guard duty was sentenced to die as an example to other volunteers about the discipline of military life. Lincoln first sought the expertise of military advisors, learning about the traditional harshness of such rules. Then he received a letter from a woman on behalf of the soldier, a fellow Vermonter. She cited as mitigation several factors, including his youth, his unfamiliarity with the rigors of army life, his recent illness that had weakened him, and his fatigue resulting from his exposure to the enervating heat and humidity of Washington, D.C., so different from his native Vermont. Her most persuasive argument was that, contrary the notion that his execution would deter other soldiers, pardoning him would be praised by the other raw volunteers, encouraging them to greater loyalty.
            Lincoln, at this early time in his presidency, was eager to follow military protocol. He asked General McClellan if he might review the case and issue the pardon. This plea from the president tickled McClellan’s ego and he did it.
            The story of this soldier was widely reported. When in 1863, he died in battle, a poem dramatizing the events was published, inspiring a legend that added to Lincoln’s saintly image.
            But Lincoln was no saint. There were times when he denied pardons and let executions go on. Some soldiers deserted multiple times, re-inlisting over and over so that they could profit by the money paid new recruits. He allowed sentences to stand for those who committed egregious crimes, such as rape.
            And then there were the cases relating to crimes committed by civilians. Adding to enormous burden of his role as commander-in-chief during the war, he had to deal with these cases as well.
            In one case, a slave trader was caught with slaves chained below deck in miserable conditions. By then the slave trade had been illegal for many years. The law said it was punishable by death. BUT by 1861, no slave trader had ever been caught, tried and executed in the United States.
            Just as he did in all other such cases, Lincoln ordered the trial transcript, read it and all the letters and pleas from the man’s lawyers and family, and gave a reprieve of one week for the condemned to make his peace with God before his execution. That was the extent of the mercy he granted in that case.
            In another case, a resident in Norfolk, Virginia, watched “colored” Union troops marching in the street near his home. He vocally protested their presence as “a provocation.”  A white officer ordered his arrest. He then drew a pistol and shot the officer two times, not intending, he later claimed, to kill him. One bullet nicked an artery and the officer died.
            In his trial before the military tribunal, he was represented by counsel who called witnesses in his defense. However, the judges refused to allow them to argue “temporary insanity.” (In a recent notorious case, Dan Sickles, a New York congressman, had shot his wife’s lover and had been acquitted on the argument that “the unwritten law” permitted revenge for the outrage to his “property,” i.e., his wife, and that the provocation caused his temporary insanity.)   
            After the plea was rejected, the defense lawyers withdrew and the defendant gave the closing argument himself. As often the case, this was a bad idea; in this case it was a disaster for him. After denying any intent to kill, he explained his behavior: the colored troops were walking on his sidewalk in broad daylight. Just a year ago, one or more of them might have been in his “N----- yard.” Now, he was expected to bow before them? And when he protested and was arrested, the officer ordered two of “them N-----s” to take him to jail. What was he to do? What would any “man of honor” (!) do?
            Lincoln thoroughly examined the trial transcript. He rejected all arguments, but was troubled by the possibility that a viable defense might have been denied. He hired an “alienist,” the term then used for a mental illness expert. The doctor examined the prisoner and gave his opinion that he was sane, both at the time of the crime, and now. Lincoln then denied the pardon, but as in the other case, granted a week’s reprieve to permit him to “prepare himself.”

            In another infamous case, Lincoln permitted the execution of 38 Native Americans, an act that damages his image for many modern critics. The case is complicated. In Minnesota, a number of young braves rebelled against white authority, protesting the corruption of the Bureau of Indian Affairs, which had long been guilty of denying promised food and support to the tribes, and had treated them miserably in many intolerable ways.  Fed up, the young men went on a rampage. Others joined them. Some attacked whites. Three hundred fifty (350) whites were killed and a few white women were raped. Hundreds of the young men were captured, and 303 were sentenced to be hanged for “killing and other outrages” (meaning rapes). 
        Lincoln reviewed every trial — most of which barely met minimal due process standards. He narrowed the list of condemned men down to 38, eliminating 275 names from the list. Even though most of the braves who were spared still had to suffer imprisonment under very harsh conditions, his action still enraged the white population of Minnesota. Lincoln was under extreme political pressure to reverse himself. In fact, he nearly lost the state in his re-election campaign of 1864. When told about it, Lincoln said: “I could not afford to hang men for votes.”

[Miller, William Lee (2008). President Lincoln, The Duty of a Statesman.”]

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